White v. Kauffman

Bryan, J., delivered the opinion of the Court. The question in this case is whether certain legacies in the will of Elizabeth Kauffman, deceased, are charged upon her real estate. The clauses in the will, which it is important to notice are as follows: “I will and direct my executor hereinafter named to satisfy and pay all my just debts and funeral expenses out of my estate. * * * I give and bequeath unto my nephew, John C. Kauffman, the sum of two hundred dollars, and'I direct my executor hereinafter named to pay the same to him as soon as convenient after my decease, out of my estate * * * I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal, and mixed whatsoever and wheresoever at the time of my decease, unto my niece, Margaret Jane White, to her- own sole and ⁹¹ separate use,” etc., etc.; describing this last devise and bequest so as to exclude all right and interest in the same on-the part of her present or any future husband. Samuel White, the husband of the residuary devisee and legatee, was appointed executor by the wiil.

There were several other legacies which were given in- words almost identical with those which were used in the case of John C. Kauffman’s legacy ; it was stated that they were all to be paid by the executor out of the estate. The personal assets were not sufficient to pay the legacies in full; and a bill in equity was filed by the legatees to subject the devised real estate to the payment of the deficiency. It will be observed that in directing the payment of her debts, the testatrix uses the same language as that which is applied to the payment of the legacies. She directs her executor to pay both debts and legacies out of her estate. .

This Court has given its approval to the authorities which hold that words which charge debts upon the realty, will have the same effect when applied to legacies. Ogle vs. Taylor, 4 9 Md., 175 . In considering the cases, which have been decided in England and in the States of this country which have followed the English authorities, we must bear in mind an important difference between the law of this State and the common law on the subject of the payment of debts due by decedents. By the common law, the real estate of a deceased person was not liable for his simple contract debts; nor even for his specialty obligations, except where the heir was expressly bound.

Hence, there was a natural and laudable desire on the part of the Judges to construe wills so as to bind the lands of the testator for the payment of his debts, wherever such coustructiou could possibly be made. They were astute in giving a meaning to general and ambiguous expressions, in order to carry into effect the just and rational purpose of paying the debts of a decedent out of his property. But in Maryland such construction would ⁹² not be justifiable. The Act of 1⁷⁸⁵, chapter ⁷², makes the real estate of a deceased liable for the payment of all his debts on failure of the personalty; and it makes no difference whether he leaves a will or not, or what provisions it may contain.

We have the authority of decided cases in this Court for holding that words in a will declaring that the testator’s debts are to be paid before devises and bequests, must be regarded as immaterial and inoperative, and as not furnishing any evidence of an intention to charge the real estate ; inasmuch as they simply provide what the law has determined shall be done, with or without such a clause in the will. Cornish vs. Willson, 6 Gill, 315 ; Piper vs. Hamilton’s Executors, 26 Md., 220 . This statute may also sufficiently explain the reason why our law on the subject of charging legacies on real estate, does not adopt the decisions in England and some of the other States of the Union. It being held that the same words which would charge debts would also charge legacies, a radical difference in construction in one case would cause a corresponding difference in the other.

It has been decided in New Jersey that where a legacy is directed to be paid “ out of the estate,” it is charged on the realty. Coxe vs. Corkendall, 2 Beasley’s Chancery Reports, 138. And it has been decided in England and elsewhere, that where a testator gives legacies,